Penn-Central Merger and N & W Inclusion Cases

389 U.S. 946

• Court: Supreme Court of the United States
• Decided: November 9, 1967
• Docket: 778, 779, 830-836
• Status: Published

Opinion

Appeal from D. C. S. D. N. Y.

Applications for a stay of enforcement of an order of the Interstate Commerce Commission 1 authorizing a merger of the Pennsylvania R. Co. and the New York Central R. Co., pending this Court’s determination of appeals from a decision of a three-judge court in the Southern District of New York, 279 F. Supp. 316, sustaining both the Commission’s order authorizing the merger and its order 2 directing the Norfolk & Western R. Co. to include in its system the Erie-Laekawanna R. Co., the Delaware & Hudson R. Corp., and the Boston & Maine Corp., have been submitted to Mr. Justice Harlan as the Associate Justice assigned to the Second Circuit. The applicants for a stay include four railroad companies, 3 holders of New York, New Haven & Hartford R. Co. bonds, 4 a Pennsylvania city, 5 and a Pennsylvania R. Co. stockholder. 6

Mr. Justice Harlan,

pursuant to our Rule 50 (6), has referred these applications to the Court for disposition. Papers supporting the stay applications have been submitted by the Delaware & Hudson R. Corp. and the Erie-Lackawanna R. Co. In addition, the Baltimore & Ohio R. Co. for itself and certain other railroad carriers 7 has docketed an appeal from the part of the Southern District of New York judgment which upheld the Commission’s order authorizing the Penn-Central merger. Similarly, the Norfolk & Western R. Co. has docketed an appeal from that part of the judgment which upheld the order directing it to include in its system the three railroads named above. 8 These appellants have filed a joint motion to accelerate consideration of their appeals. Motions to consolidate and to accelerate consideration of the appeals have been filed by the Delaware & Hudson Corp. and the Erie-Lackawanna R. Co. The United States and the Interstate Commerce Commission and various other parties 9 have indicated that they do not oppose a stay of the merger if consideration of the appeals is substantially accelerated.

Upon consideration of these applications, motions, and other papers, a stay of enforcement of the order of the Interstate Commerce Commission, and the motions to consolidate and accelerate, are hereby granted subject to and in accordance with the following expedited schedule. See Hannah v. Larche, 361 U. S. 910; Erie-Lackawanna R. Co. v. United States, 385 U. S. 914. Any parties to the proceedings below who desire to appeal and have not already done so shall file notices of appeal and shall docket their cases on or before November 17, 1967. Appellants who have filed notices of appeal but who have not perfected such appeals shall docket their cases on or before the same date. Appellees shall file their motions in response to the jurisdictional statements on or before November 27, 1967. Appellants shall file their replies to those motions on or before November 30, 1967. All appeals will be consolidated, and all matters involved are set for oral argument on December 4, 1967, without further exchange of briefs beyond that indicated hereafter. A total of four hours is allotted for argument, with two hours allotted to those supporting the judgment below and two hours to those attacking that judgment. Four attorneys will be permitted to participate in the oral argument on each side, the division of time to be settled among counsel. The case is to be submitted upon the oral arguments, the.jurisdictional papers before the Court, the briefs filed below (copies to be filed in this Court on or before November 20, 1967), and the typewritten record.

Howard J. Trienens, Richard J. Flynn, George L. Saunders, Jr., Lloyd N. Cutler, Daniel K. Mayers, Edward K. Wheeler, Robert B. Claytor, Kenneth H. Ekin, Norman C. Melvin and John S. Shannon for Baltimore & Ohio Railroad Co. et ah; Myron S. Isaacs and Homer Kripke for Oscar Gruss & Son; Lawrence W. Pollack for New York, New Haven & Hartford Railroad Co. First Mortgage 4% Bondholders Committee and Harvey Gelb, Israel Packel and Gordon P. MacDougall for the City of Scranton and Milton J. Shapp on the Applications for Stay. Messrs. Trienens, Flynn, Sau/nders, Cutler, Mayers and Wheeler and Albert Ritchie for appellants on the Motion to Advance. Harry G. Silleck, Jr., for Delaware & Hudson Railroad Corp., and Thomas D. Barr and Eldon Olson for Erie-Lackawanna Railroad Co. on Motions to Consolidate and to Advance. Solicitor General Griswold and Robert W. Girmane for the United States and the Interstate Commerce Commission; Henry P. Sailer for Pennsylvania Railroad Co. and New York Central Railroad Co.; James A. Belson for Boston & Maine Corp.; Joseph Averbach, James Wm. Moore, Robert W. Blanchette, Arthur Blasberg, Jr., Robert G. Bleakney, Jr., and Morris Raker for Trustees of New York, New Haven & Hartford Railroad Co.; and Samuel Kanell, Special Assistant to the Attorney General of Connecticut, for the States of Connecticut and Rhode Island in response to Applications for Stay and Motions to Advance. Me. Justice Marshall took no part in the consideration or decision of this matter. [See 386 U. S. 372.]

1 Order of June 9, 1967, 330 I. C, C. 328.

2 Order of June 9, 1967, 330 I. C. C. 780, as modified by Order of September 1, 1967, 331 I. C. C. 22.

3 Baltimore & Ohio It. Co.; Chesapeake & Ohio R. Co.; Norfolk & Western It. Co.; Western Maryland It. Co.

4 Oscar Grass & Son; New York, New Haven & Hartford It. Co. First Mortgage 4% Bondholders Committee.

5 City of Scranton.

6 Milton J. Shapp, who also appears as a citizen of Pennsylvania.

7 Chesapeake & Ohio R. Co.; Norfolk & Western R. Co.; Western Maryland R. Co.

8 The Boston & Maine Corp. has also filed a notice of appeal with respect to this part of the judgment.

9 Pennsylvania R. Co.; New York Central R. Co.; Boston & Maine Corp.; Trustees of the New York, New Haven & Hartford R. Co.; States of Connecticut- and Rhode Island.